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Legal Implications Of Child Abuse

By Richard R. Hammar

Hundreds of churches have been sued in recent years as a result of the sexual molestation of minors by church workers. Unfortunately, many church leaders continue to ignore this problem and resist implementing a preventive-maintenance program. Too often the thinking is, No child has ever been molested in our church, so why worry? This is a dangerous response to what one church insurance executive has called an epidemic.

Incidents of molestation can occur in any church. Most churches are perfectly willing to hire, without any screening whatever, anyone expressing an interest in working as a volunteer with children or youth.

Church leaders can take relatively simple, effective steps to reduce the likelihood of such an incident’s occurring. This article will alert church leaders to the seriousness of this risk and help them implement a preventive-maintenance program that will reduce the possible occurrence.

The Legal Environment

Most lawsuits filed against churches for acts of child molestation have alleged that the church was legally accountable either on the basis of "negligent hiring" or "negligent supervision." The term negligence generally refers to conduct that creates an unreasonable risk of foreseeable harm to others. It connotes carelessness, heedlessness, inattention, or inadvertence.

Negligent hiring simply means that the church failed to act responsibly and with due care in the selection of workers (both volunteer and compensated) for positions involving the supervision or custody of minors. Victims of molestation who have sued a church often allege that the church was negligent in not adequately screening applicants.

A church may exercise sufficient care in hiring but still be legally accountable for acts of molestation on the basis of negligent supervision, whichmeans a church did not exercise sufficient care in supervising a worker. Clearly, both theories of liability are important.

Establishing Preventive Maintenance

Church leaders can take several steps to screen out potential child molesters from church activities. Consider the following:

Step 1: The 6-month rule.

Churches can significantly reduce the risk of incidents of sexual molestation by adopting a policy restricting eligibility for any position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time (e.g., 6 months). Such a policy gives the church an additional opportunity to evaluate applicants and helps to repel persons seeking immediate access to children.

Step 2: Screening forms.

Have every applicant for youth work (volunteer or compensated) complete a screening application. View this as essential. At a minimum, the application should ask for the applicant’s name; address; a full explanation of any prior criminal convictions; the area of youth work the applicant is interested in; any training or education in youth-related work; a description of church membership over the past 5 years; a description of church volunteer work over the past 5 years; a description of any youth work (at churches or any other organization) over the past 5 years; and the names and addresses of two references.

Key point. A new federal law (the National Child Protection Act of 1993) permits states to designate organizations that will be required to obtain an FBI nationwide criminal records check on those child-care workers designated by state law. Many states probably will designate churches, meaning that churches can quickly check on the suitability of some prospective youth workers by asking a state agency to conduct a criminal records check using the nationwide FBI criminal records system. It is essential for churches to implement a responsible screening program for all youth workers regardless of being able to request nationwide criminal records checks under the new law, for the new law will not cover all church youth workers.

Churches should keep in mind the following additional considerations when implementing a screening procedure:

If an applicant is unknown to you, confirm his or her identity by requiring photographic identification, such as a state driver’s license.

The screening procedure should apply to all workers—both compensated and volunteer.

To ensure compliance with state law, seek the services of a local attorney to draft an appropriate screening form. Share the form with your insurance company and the local office of your state agency that investigates reports of child abuse.

Be aware of any additional legal requirements that apply in your state. Check with a local attorney for guidance.

Step 3: Make a record of contacts with references and prior churches.

Having an individual complete a screening application form is in itself not enough to protect a church and its members. Significant protection only occurs if the church takes the following additional steps:

Contact each reference listed on the application and make a written record of each contact. Show the date and method of the contact, the person making the contact as well as the person contacted, and a summary of the reference’s remarks. Such forms, when completed, should be kept with an applicant’s original application.

Contact each church where the applicant has indicated prior experience in working with youth. Provide a written record of all the information contained in the preceding paragraph.

Step 4: Adopt a child-abuse policy.

Consider adopting a child-abuse policy that (1) quotes verbatim the provisions of state law that define child abuse, identify those persons under a legal obligation to report known or reasonably suspected cases of abuse, and indicate the penalties for failure to report; (2) lists the most common signs and symptoms of child abuse; and (3) mandates all church employees and workers (compensated and volunteer) to report immediately known or reasonably suspected cases of child abuse.

Step 5: Appropriate response if an incident of molestation occurs.

If an incident occurs, the church should immediately react with concern and compassion, making such services (including counseling) available as are appropriate under the circumstances. Viewing the victim and his or her family as potential adversaries in a court of law increases significantly the likelihood of a civil lawsuit against the church.

Step 6: Education.

Provide your staff with training periodically. Have an employee of your local child-welfare agency address your workers once a year about child molestation and abuse. Further, provide resource material to your workers so they appreciate and fully support the preventive measures you are implementing.

Key point. Immediately report to your church insurance company all known or reasonably suspected cases of child molestation that occur on church property or during church activities. Insurance policies require the insured to notify promptly the insurance company of potential claims.

Key point. It is imperative to discuss known or reasonably suspected cases of molestation or abuse with a local attorney who is familiar with your state laws regarding reporting obligations. An attorney should also be able to provide you with helpful guidance in dealing responsibly with the molester, the victim, the victim’s family, and the media.

Child-Abuse Reporting

Every state has a child-abuse reporting law that requires mandatory reporters to report known or reasonably suspected incidents of child abuse to a designated state agency. Here are some factors to consider in deciding whether to report a particular incident of suspected abuse to the state:

Are you a mandatory or a permissive reporter under state law? Mandatory reporters (as defined by state law) face criminal penalties for not reporting known or reasonably suspected incidents of abuse. Permissive reporters are permitted to report, but they are not legally required to do so.

What is the definition of child abuse in my state? Surprisingly, some states define abuse very narrowly to include only abuse inflicted by a parent or a caretaker. In most states abuse is defined to include both sexual and physical.

Does the clergy-penitent privilege apply? In a few states clergy who learn of child abuse during a confidential counseling session are not required to report the information to the state.

Consider discussing the case anonymously with a representative of the state agency that receives reports of abuse. These representatives often are more than willing to discuss particular cases and evaluate whether a report should be filed. If you are advised that a report need not be filed, be sure to obtain the representative’s name and make a record of the call.

If you have any doubts concerning your duty to report a particular incident to the state, an attorney should be consulted. It is also desirable to inform your insurance agent.

Conclusions

A church’s commitment to reducing the risk of child molestation must be sustained over time. Many churches have a high turnover in church leadership and volunteer staff, which can result in a reduced commitment to enforcing a preventive-maintenance program. This tendency must be guarded against zealously.

Reducing the Risk of Child Sexual Abuse in Your Church (Christian Ministry Resources) This is an invaluable kit, prepared by Richard Hammar and Dr. James Cobble, that contains information to help churches respond to the risk of child abuse. Materials have been reviewed by hundreds of church and denominational leaders, attorneys, and insurance executives. Over 60,000 churches have used them.

Church Law & Tax Report (Christian Ministry Resources) This bimonthly newsletter, written by Richard Hammar, apprises churches and clergy of current legal and tax issues affecting them. Each issue contains one or more feature articles as well as a survey of recent developments and a tax calendar summarizing significant tax dates during the next 2-month period.

The National Committee for Prevention of Child Abuse (NCPCA) publishes materials that deal with various aspects of child abuse and molestation. The NCPCA catalog is available free upon request from NCPCA, Publications Department, P.O. Box 94283, Chicago, Ill. 60690; telephone 312-663-3520.